Thomas v. Garcia et al

Filing 171

ORDER GRANTING 157 Motion for Attendance of Incarcerated Witnesses at Trial, signed by Magistrate Judge Jennifer L. Thurston on 06/11/2013. (Martin-Gill, S)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEAN-PIERRE K. THOMAS,

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Plaintiff,

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v.
M. GARCIA, et al.,

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Case No. 1:08-cv-00689 JLT (PC)
ORDER GRANTING MOTION FOR
ATTENDANCE OF INCARCERATED
WITNESSES AT TRIAL
(Doc. 157)

Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. This action is proceeding on Plaintiff’s complaint, filed May 16, 2008, against

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Defendants M. P. Garcia and Bonilla for excessive force in violation of the Eighth Amendment.

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Before the Court is Plaintiff’s motion for attendance of incarcerated witnesses. (Doc. 157) In the

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motion, Plaintiff seeks to have three inmate-witness transported for trial; inmate Lovoyne Lee

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Macon, CDCR# H61214, Michael Key Jr., CDCR # T-77528, Damon Edward Moore (J-52867).

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Defendants did not file any objection to these witnesses being produced at trial.
For the reasons set forth below, the Court GRANTS Plaintiff’s motion for attendance of

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the incarcerated witness.

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I.

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Background
On October 5, 2006, Plaintiff was housed at Kern Valley State Prison. (Doc. 129 at 2-4)

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On that day, there was an incident at about 9:30 a.m. while inmates were being released to the

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exercise yard. Id. An inmate was involved in a verbal altercation with a psych tech. As a result,

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correctional officers ordered the yard to go down. Id.
Several inmates refused to comply with orders to “prone out” and force was used to gain

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compliance. (Doc. 129 at 2-4) Plaintiff, after complying with orders to “get down,” admittedly

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crawled a short distance and lifted his head to watch what was happening. Id. Defendant Garcia

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ordered Plaintiff and several others to cross their legs, apparently to impose an impediment to

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further movement. Id. Plaintiff asserts he did not hear this order or that this order was never made

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but asserts slowly he began to cross his legs. Id.

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Plaintiff was told to “shut-up” and responded by telling Garcia to “shut-up.” (Doc. 129 at

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2-4) Plaintiff refused to comply with orders to allow him to be cuffed but contends once he was

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handcuffed, Garcia and Bonilla picked him up and slammed him head-first into the ground. Id.

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Plaintiff contends also that when Garcia and Bonilla escorted him to the medical facility, they

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again slammed him into the ground. Id. at 5. Plaintiff complains Defendants applied the

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handcuffs to tightly and that he suffered injuries as a result. Id. at 5-6.

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Plaintiff contends that each of the inmate-witnesses was present at the time of the events

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and are eyewitnesses. Plaintiff contends also that each have expressed a willingness to testify in

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the past. Defendants note that there is no indication they are currently willing to testify.
However, the Court has the authority to compel a witness to testify so the failure to have
information about the witnesses’ current willingness to testify is not a significant impediment.1
ORDER

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Based upon the foregoing, Plaintiff’s motion for attendance of incarcerated witness (Doc.
157) is GRANTED.

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IT IS SO ORDERED.
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Dated:

June 11, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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If the witnesses report they have no personal knowledge of the events, the Court will
reconsider this order.

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